* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 28, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40011

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERNANDO ALFONSO DOMINGUEZ-REYNOSA,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:04-CR-738-ALL

--------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges. 

PER CURIAM:*

Fernando Alfonso Dominguez-Reynosa (Dominguez) pleaded

guilty to an indictment charging him with being found illegally

in the United States following a previous deportation. Dominguez

contends that he was sentenced illegally pursuant to the

mandatory Sentencing Guidelines in violation of the rule in

United States v. Booker, 543 U.S. 220 (2005), a so-called Fanfan

error. The Government contends that Dominguez has waived the

right to bring this issue in his plea agreement. In United
No. 05-40011

-2-

States v. Reyes-Celestino, 443 F.3d 451, 453 (5th Cir. 2006), the

court held that a similar waiver did not bar a preserved Fanfan

claim because the defendant did not (1) “unambiguously agree[] to

a mandatory application of the Sentencing Guidelines” and (2) did

not “explicitly waive his right to challenge the

constitutionality of the Guidelines on appeal.”

Because Dominguez did not preserve Fanfan error in the

district court, our review is for plain error. See United States

v. Valenzuela-Quevado, 407 F.3d 728, 732 (5th Cir.), cert.

denied, 126 S. Ct. 267 (2005). Dominguez cannot show that the

district court’s error in sentencing him pursuant to mandatory

Guidelines affected his substantial rights. See United States v.

Robles-Vertiz, 442 F.3d 350, 354 (5th Cir. 2006). 

Dominguez argues that he should not be required to show

plain error because an objection would have been futile in light

of United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004),

vacated, 543 U.S. 1101 (2005). He contends also that the

district court’s mandatory application of the Sentencing

Guidelines was plainly erroneous because the error was structural

or that prejudice should otherwise be presumed. He concedes that

these arguments are foreclosed and states that they are raised to

preserve them for further review. See United States v. Malveaux,

411 F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126 S. Ct. 194

(2005); United States v. Mares, 402 F.3d 511, 520–21 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005). 
No. 05-40011

-3-

Dominguez challenges the constitutionality of 8 U.S.C.

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000). The Government contends that

Dominguez waived the right to assert this question in his plea

agreement. We assume, arguendo only, that the waiver does not

bar the instant appeal. 

In Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Supreme Court held that treatment of prior

convictions as sentencing factors in § 1326(b)(1) and (2) was

constitutional. Although Dominguez contends that a majority of

the Supreme Court would now consider Almendarez-Torres to be

incorrectly decided in light of Apprendi, we have repeatedly

rejected such arguments on the basis that Almendarez-Torres

remains binding. See United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Dominguez

concedes as much, but he raises the argument to preserve it for

further review. The judgment is AFFIRMED.